Custom, Excise & Service Tax Tribunal
Nikon India Pvt Ltd vs New Delhi on 6 April, 2026
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. I
CUSTOMS APPEAL NO. 52552 OF 2019
(Arising out of Order-in-Appeal No. CC (A)/CUS/D-I/Import/NCH/255/2019-20 dated
14.06.2019 passed by the Commissioner of Customs (Appeals), New Customs House,
Near I.G.I. Airport, New Delhi)
Nikon India Private Ltd. .....Appellant
Plot No. 71, Sector-32, Institutional Area,
Gurgaon - 122001, Haryana
VERSUS
Commissioner of Customs (Import), .....Respondent
New Customs House, Near I.G.I. Airport,
New Delhi - 110037
APPEARANCE:
Shri V. Lakshmikumaran, Ms. Anjali Gupta and Shri Ashwani Bhatia, Advocates
for Appellant
Shri P.R.V. Ramanan, Special Counsel and Shri Rakesh Kumar, Authorized
Representative appearing for the Department
CORAM:
HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT
HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)
Date of Hearing: 18.11.2025
Date of Decision: 06.04.2026
FINAL ORDER NO. 50671/2026
BY THE BENCH:
Nikon India Private Ltd.1 has filed this appeal to assail the order
dated 14.06.2019 passed by the Commissioner of Customs (Appeals), New
Customs House, Near I.G.I. Airport, New Delhi2, by which the application
filed by it for refund of duty said to have been paid under protest on the
52 Bills of Entry that were filed during the period from 05.01.2015 to
27.02.2015 has been rejected.
1. the appellant
2. the Commissioner (Appeals)
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2. The appellant is engaged in the import and trade of various
electronic products, including digital still image video cameras3. According
to the appellant, it was entitled to claim exemption from payment of basic
customs duty on the import of digital cameras in terms of a Notification
dated 01.05.2005 that was subsequently amended on 17.03.20124. The
appellant claims that the benefit of the Exemption Notification was earlier
granted to the appellant for the period from 17.03.2012 to 12.02.2014 but
as an investigation was carried out by the Directorate of Revenue
Intelligence on the imports of digital cameras, the department did not
allow the appellant to claim the benefit of the Exemption Notification from
February, 2014 onwards. When the department did not allow the appellant
to claim exemption from payment of basic customs duty in terms of the
Exemption Notification, the appellant submitted a letter requesting the
department to provisionally assess the Bills of Entry filed for importing
digital cameras. The Deputy Commissioner wrote a letter dated
14.03.2014 to the appellant stating that digital cameras were not eligible
for exemption of customs duty, but if the appellant did not agree, it could
intimate the department so that a speaking order could be passed under
section 17(5) of the Customs Act, 19625. The appellant, by a letter dated
18.03.2014, requested the officer to pass a speaking order. However, the
appellant paid basic customs duty under protest for future Bills of Entry
and filed protest letters with each of the Bills of Entry.
3. As speaking orders were not passed, the appellant claims that it had
no choice but to file a refund application on 21.07.2015 before the
Assistant Commissioner of Customs (Refund), New Delhi6 claiming refund
3. the digital cameras
4. the Exemption Notification
5. the Customs Act
6. the Assistant Commissioner
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of duty amounting to Rs. 7,32,77,496/- paid under protest for the period
from 29.12.2014 to 27.02.2015. The refund application was filed in Form
No. 102 and it also contained a covering letter. In Column No. 10 of the
said Form, the appellant stated as follows:
10. Any further details deemed : Department had initially allowed us
necessary and relevant to the to import the DSC on provisional
refund claim basis availing the benefit of
Notification No. 25/2005-Cus.
However, on 14.03.2014 we were
informed that department had
reassessed the bills of entry. We
were informed that if we do not agree
to the re-assessment, we may intimate
the same to the department in writing
so that a speaking order may be
passed as envisaged under Section
17(5) of the Customs Act, 1962.
Thereafter, we filed bills of entry
under protest and asked for a
speaking order. However, even
after multiple reminders, no
speaking order has been passed till
date. Therefore, in abundant
caution, we are filing the refund
claim. Covering letter is enclosed
as Appendix-2.
(emphasis supplied)
4. In the covering letter, the appellant stated:
"8. It is submitted that we are eligible to claim the
refund of the amount paid under protest, as the
cameras are entitled to the benefit of exemption from
payment of BCD. Brief submissions explaining such
eligibility of the cameras are as follows:
(a) to (q) *****
(r) In this background, we are filing the refund
application in abundant caution without prejudice to our
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request for passing of a speaking order which has not
been passed till date despite repeated reminders. We
request your goodself to grant us the refund of Rs.
7,32,77,496/- along with interest at applicable rate. An
affidavit affirming the above facts is attached. Further,
following documents are being submitted in this
regard:-
Letter of payment of duty under protest
(Annexure-2);
TR-6 Challan as evidence of payment of duty
(Annexure-3);
Attested copy of the Audited balance sheet
showing claims recoverable (Customs duty) for
financial year 2014-15 (Annexure-4);
CA Certificate for unjust enrichment along with
Co-relation certificate (Annexure-5);
Original Copy of the bills of entry (Annexure-6).
9. At the time of filing of earlier refund application on
16.03.2015, your goodself pointed out several
deficiencies and sought for following documents namely
Original Bills of entry, CA certificate and Co-relation
certificate. It is submitted that we are filing the present
application accompanied with Original Bills of entry, CA
certificate along with Co-relation certificate as
Annexures 6 and 5 respectively."
5. A speaking order has to be passed within a period of 15 days from
the date of re-assessment of the Bills of Entry as contemplated under
section 17(5) of the Customs Act. The appellant had made a request for
passing speaking order on 18.03.2014 but as it was not passed despite
reminders submitted by the appellant, the appellant filed Writ Petition No.
8009 of 2015 before the Delhi High Court on 21.08.2015 for a direction
upon the respondent to pass a speaking order.
6. On 15.09.2015, the Assistant Commissioner issued a memorandum
asking the appellant to explain why the refund claim should not be
rejected in the absence of re-assessed Bills of Entry in view of the
judgment of the Supreme Court in Priya Blue Industries Ltd. vs.
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Commissioner of Customs (Preventive)7. The appellant submitted a
reply dated 30.09.2015 stating therein the appellant was entitled to the
benefit of the Exemption Notification and that re-assessed Bills of Entry
were not required to be filed for claiming the refund.
7. Writ Petition No. 8009 of 2015 filed by the appellant before the Delhi
High Court came to be disposed of on 08.02.2016. A direction was issued
to the Deputy Commissioner to pass a speaking order under section 17(5)
of the Customs Act within fifteen days.
8. The Assistant Commissioner, by order dated 12.02.2016, rejected
the refund application filed by the appellant on the ground of absence of
re-assessed Bills of Entry. The relevant portions of this order dated
12.02.2016 are reproduced below:
"I have gone through the case records and examined
the documents submitted by the party. The party filed
refund application for excess duty paid against
Bills of entries filed between the period December
2014 to February 2015 on the ground that the
party is eligible to claim the benefit of exemption
from payment of basic customs duty provided
under Notification No. 25/2005 Cus- dated
01.03.2005. The party imported Digital Still image
video Cameras (DSCs) and classified the same under
Customs Tariff heading 85258020 and the party
claimed the benefit under Notification 25/2005-
Customs dated 01.03.2005 as amended by Notification
No. 15/2012 Customs dated 17.03.2012. The Deputy
Commissioner of Customs, Group VA, New Customs
House, New Delhi denied the benefit of exemption
under Notification No. 25/2005 Cus dated 01.03.2005
on the DSCs imported by the party and finalized the Bill
of Entries in terms of Section 17(4) of the Customs Act,
1962.
Further, party has filed refund claim without
getting the said Bill of Entry re-assessed from the
7. 2004 (172) E.L.T. 145 (S.C.)
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concerned assessing group or without any order
passed by the appellate authority in favour of the
party for eligibility of the said exemption
Notification. They submitted refund application along
with Bills of entries filed between the period December
2014 to February 2015, CA Certificate, Co-relation
sheet, Correspondence with department and requested
that refund application be allowed to be filed and be
adjudged on the merits of the case and a formal order
be passed.
I observe that the relevant Bills of entry
were finally assessed by the concerned assessing
Group and benefit of Notification No. 25/2005
Customs dated 01.03.2005 was denied and thus
there is no excess payment, as the exemption
under Notification 25/2005- Cus dated
01.03.2005 was denied to the party by the Deputy
Commissioner of Customs, Group-VA, and
therefore, if the party has any different view they
should have approached the appellate authorities
for getting orders for the re-assessment of the
said bills of entry. Accordingly, memorandum dated
15.09.15 and 07.01.2016 were issued to the party and
an opportunity for personal hearing was also granted to
the party In response to the said memorandum, the
party appeared for personal hearing on 18.01.2016 and
submitted a written submission.
In view of the above, I find that party's
claim for refund is not justifiable and thus not
admissible for refund of excess payment of
customs duty under section 27 (1) (a) of the
Custom Act, 1962. Court cases and other supporting
grounds relied upon by the party do not squarely cover
the issue and without getting bills of entry re-assessed,
excess payment cannot be established.
It is observed that the party failed to submit any
re-assessment order or speaking order under Section
17(5) of the Customs Act, 1962 from the concerned
group on classification of goods under consideration.
Further, it is beyond the scope of jurisdiction of
refund branch to decide the issue on merits
without the assessment of the said Bills of Entry
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by the concerned appraising group and refund
branch can only decide cases where excess
payment is clearly established with documentary
evidence. Hon'ble Supreme Court order in the
case of M/s Priya Blue Industries Ltd., Vs.
Commissioner as reported in 2004 (170) ELT A
308 (SC) held that once an order of assessment is
passed the duty would be payable as per that
order. Unless that order of assessment has been
reviewed under Section 28 and /or modified in an
Appeal that order stands. A refund claim is not an
appeal proceeding. The officer considering a
refund claim cannot sit in Appeal over an
assessment made by a competent officer. The
officer considering the refund claim cannot
review an assessment order.
In view of the above, I find that refund claim
of Rs. 7,32,77,496/- filed on 21.07.2015 is not
maintainable since the importer has failed to
fulfill the basic condition for claiming of excess
payment of customs duty under section 27(1)(a)
of the Customs Act, 1962. I find there is no proof for
payment of excess custom duty in respect of Bills of
entries filed for the period December 2014 to February
2015. Thus the claim is not admissible and liable to be
rejected.
(emphasis supplied)
9. The appellant challenged the aforesaid order dated 12.02.2016
passed by the Assistant Commissioner by filing an appeal before the
Commissioner (Appeals).
10. A speaking order was also passed by the Assistant Commissioner
after a period of almost two years on 12.05.2016. The benefit of the
Exemption Notification on import of digital cameras imported by the
appellant was denied. This order was also assailed by the appellant by
filing an appeal before the Commissioner (Appeals).
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11. The appeal filed by the appellant against the speaking order dated
12.05.2016 was dismissed by the Commissioner (Appeals) by order dated
06.06.2019 after placing reliance on the decision of the Tribunal rendered
on 19.12.2017 in the matter of the appellant wherein exemption claimed
from payment of basic customs duty on digital cameras was not accepted.
The relevant portions of the order dated 06.06.2019 passed by the
Commissioner (Appeals) are reproduced below:
"2.1 The Appellant had filed 626 Bills of Entry during
the period from 13th February, 2014 to 7th March, 2015
for clearance of 'NIKON' brand "Digital Still Image Video
Cameras" under CTH 85258020 with duty rates 0%
+12%+0%+0% vide Notification No. 25/2005-Cus
dated 01.03.2005 (hereinafter referred to as
"Notification No. 25/2005-Cus") Sr. No. 13 as amended
by Notification No. 15/2012-Cus. However, while
finalizing the assessment of the impugned Bills of
Entry, the Department assessed the duty rates as
10%+12%+2%+1%+0% without granting the
exemption benefit of 10% Basic Customs Duty (BCD).
The Appellant cleared the goods on payment of
differential duty "under protest".
2.2 Accordingly, the Adjudicating Authority passed the
impugned Order that 'NIKON' brand "Digital Still image
Video Cameras" imported by the Importer under
subject Bills of Entry are not entitled to BCD exemption
as per Notification No. 25/2005-Cus as amended by
Notification No. 15/2012-Cus as they do not fit into the
category of "explanation" provided thereunder at SI.
No.13. Therefore, the re-assessment by the
Department by denying the exemption benefit based
upon the features and the contentions raised by the
Importer is in accordance with the said Notifications
and the referred Board's Circular. Held Accordingly.
*****
5.8 Hon'ble CESTAT, Principal Bench, New Delhi
in Final Order No. 58446-58450/2017 dated
19.12.2017 in the matter of M/s. Sony India Pvt.
Ltd., M/s. Canon India Pvt. Ltd., M/s. Nikon India
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Pvt. Ltd. & Others, wherein the identical issue of
the benefit of exemption of Basic Customs duty to
Digital Still image Video Cameras under
Notification No. 25/2005- Cus., as amended on
17.03.2012, held, inter alia, that:
"Para 22. The imported digital cameras taking into
consideration the memory capacity at the time of
import, were found to have the capability of
recording video in a single sequence of more than
30 minutes. However, during investigation, it was
found that such capabilities have been restricted
through firmware to a single sequence of less
than 30 minutes. Hence, the fact of matter is that
the imported digital cameras, can run a single
sequence of only less than 30 minutes whereas
the cameras have the capability to have a single
sequence of much more than 30 minutes. If the
arguments of the appellant are to be accepted,
then the notification benefit is to be extended to
all those digital still image video cameras, in
which a single sequence recording is of less than
30 minutes. Such an interpretation will make the
stipulation in the explanation to the Notification
about the maximum storage (including expanded)
capacity as redundant. It is obligatory to read and
satisfy all the conditions of the notification without
rendering any part therein as redundant. Since in
the present case, the imported digital cameras
are capable of recording video with minimum
resolution and minimum recording speed for more
than 30 minutes in a single sequence; using
maximum storage capacity, such cameras will not
be entitled to the benefit of notification. It is well
settled that a person who claims exemption or
concession, has to establish that he is entitled to
that exemption or that concession. In the present
case, as discussed above, the impugned goods do
not fulfil all the conditions specified in the
notification and hence it is inevitable that the
benefit of notification is denied to these goods."
*****
5.9 Therefore, the impugned Order is legally correct in
holding that the impugned 'Digital Still Image Video
Cameras' imported by the Appellant are not entitled to
BCD exemption as Notification No. 25/2005-Cus., as
amended. Therefore, re-assessment by the
Department by denying the exemption benefit is
in accordance with the said Notification."
(emphasis supplied)
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12. The appeal filed by the appellant against the order dated 12.02.2016
rejecting the refund application was also dismissed by the Commissioner
(Appeals) by order dated 14.06.2019. The relevant portions of the said
order dated 14.06.2019 are reproduced below:
"2. The facts of the case are that the appellant filed a
refund claim of Rs. 7,32,77,496/- against the Customs
duty paid in excess on the imported goods cleared vide
Bills of Entry filed between the period from 29 th
December, 2014 to 27th February, 2015 on the grounds
that they were eligible to claim the benefit of basic
Customs duty provided under Notification No. 25/2005-
Cus dated 01.03.2005. The Asstt. Commissioner of
Customs (Refund) vide the impugned order rejected the
claim filed by the appellant on the grounds that the bills
of entry were finally assessed by the appraising group
and no re-assessment order or order-in-appeal were
issued against the said bills of entry.
5.3 Hon'ble CESTAT, Principal Bench, New Delhi
in Final Order No. 58446-58450/2017 dated
19.12.2017 in the matter of M/s Sony India Pvt.
Ltd., M/s Canon India Pvt. Ltd., M/s Nikon India
Pvt. Ltd. & Others, wherein the identical issue of
the benefit of exemption of Basic Customs duty to
Digital Still image Video Cameras under
Notification No. 25/2005- Cus., as amended on
17.03.2012, held, inter alia, that: *****
*****
5.4 Therefore, the impugned 'Digital Still Image
Video Cameras' imported by the Appellant are not
entitled to BCD exemption as per Notification No.
25/2005-Cus., as amended. Therefore, re-
assessment by the Department by denying the
exemption benefit was in accordance with the
said Notification.
5.5 The impugned appeal involves two issues:
(i) Benefit of Notification No. 25/2005-Cus.
(ii) Consequent refund of excess duty paid by applying
Hon'ble Delhi High Court judgement of Aman Medical
Products and Micromax Informatics Ltd. supra.
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As discussed above, on merits, the case has
been decided by Hon'ble CESTAT and benefit of
Notification No. 25/2005-Cus. is not admissible to
the imports made by the Appellant. Thus, there is
no case for any refund of excess duty paid. In the
absence of any excess duty paid or borne by the
Appellant, no grounds for refund arise. Thus,
there was no need for any re-assessment of the
finalised Bills of Entry. The ratio of judgements
cited above can come in aid when excess duty
paid is refundable on merits. So, this case is
against the appellant.
6. In the above light, I hold that nothing exists on
merits to say that the order per se is wrong or legally
not tenable. I dismiss the present Appeal."
(emphasis supplied)
13. The appellant filed Customs Appeal No. 52218 of 2019 before this
Tribunal against the order dated 06.06.2019 passed by the Commissioner
(Appeals) in connection with the speaking order. The Tribunal, by an
interim order dated 08.03.2022, did not agree with the decision earlier
rendered by the Tribunal on 19.12.2017 and, therefore, referred the
matter to a Larger Bench of the Tribunal to decide the following two
issues:
(i) Whether the digital cameras imported by the appellant
would be entitled to basic customs duty exemption under the
Exemption Notification, as amended by the Notification
dated 17.03.2012, whereby an 'Explanation' was added; and
(ii) Whether the Tribunal, in the Final Order dated 19.12.2017,
has correctly interpreted the scope of 'Explanation'.
14. The Larger Bench of the Tribunal, while answering the reference by
order dated 14.06.2024, held that the digital cameras imported by the
appellant would be entitled to exemption from payment of basic customs
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duty in terms of the Exemption Notification. The relevant portions of the
interim order dated 14.06.2024 passed by the Larger Bench of the
Tribunal are reproduced below:
"34. *****. In the present case, there is no ambiguity
in reading the Explanation of the Notification
No.25/2003-Cus. dated 01.03.2005 as amended, in as
much as, a literal interpretation of the said Explanation,
as discussed above, reveals that all the three
parameters/functions of a digital camera should be
cumulatively read so as to ascertain whether all the
characteristics are above the threshold limit; in that
event, the digital camera would not be eligible to the
exemption from BCD under the said Notification. In the
event any one of the parameter/characteristic is below
the threshold limit e.g. recording time is less than 30
minutes in a single sequence using the maximum
storage (including expanded) capacity, then the
cameras would be eligible to the benefit of the said
Notification. Also, the Revenue has never claimed that
there is ambiguity in the said Notification. On the
contrary, the Learned Special Counsel in the written
submission mentioned that there is no ambiguity in the
wordings of the Notification and it should be literally
interpreted with in the legal frame work. The appellant
in the present case also fairly established that their
case falls within the four corners of the said Notification
by adducing evidence discussed above.
35. In view of above, it can fairly be inferred that
the appellants are eligible to exemption from BCD
under the said Notification 25/2005 CE dated
1.3.2005 as amended.
36. The reference is answered, accordingly, as
follows:
(i) The "digital still image video cameras" would be
entitled to BCD exemption under Notification No.
25/2005-Cus. dated 01.03.2005 as amended by
Notification No.15/2012 dated 17.03.2012.
(ii) The interpretation of the Explanation by the
Division Bench of the Tribunal in Sony India
Pvt.'s case denying the benefit of exemption is a
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result of incorrect interpretation of the Explanation
of the said Notification."
(emphasis supplied)
15. The Division Bench of the Tribunal, on the basis of the aforesaid
answer to the reference by the Larger Bench, allowed Customs Appeal No.
52218 of 2019 on 09.09.2024 by granting the benefit of the Exemption
Notification to the digital cameras imported by the appellant. The
impugned order dated 06.06.2019 passed in connection with the speaking
order was set aside with consequential relief. The relevant portions of the
order are reproduced below:
"M/s. Nikon India Private Limited is aggrieved by
the order dated 06.06.2019 passed by the
Commissioner of Customs (Appeals) by which the
appeal that was filed by it to assail the order dated
13.05.2016 passed by the Assistant Commissioner of
Customs, Group VA has been dismissed. The Assistant
Commissioner had held that NIKON brand "digital still
image video cameras" imported by the appellant are
not entitled to Basic Customs Duty exemption under
the notification dated 01.03.2005, as amended by the
notification dated 17.03.2012.
2. When the matter was heard by this bench, a detailed
order dated 08.03.2024 was passed. Paragraphs 64 to
65 of the order are reproduced below:
"64. The view that we have taken, namely, that
"digital still image video cameras" imported by
the appellant would be entitled to BCD exemption
under the notification dated 01.03.2005, as
amended on 17.03.2012, is contrary to the view
taken by the Division Bench of the Tribunal on
19.12.2017 in the earlier round of proceedings
arising out of the show cause notice dated
09.08.2014. 65. It would, therefore, be
appropriate to refer the matter to the
President of the Tribunal for constituting a
larger bench of the Tribunal for deciding the
following issues:
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"(i) Whether the "digital still image video
cameras" imported by the appellant
would be entitled to BCD exemption
under the notification dated
01.03.2005, as amended by the
notification dated 17.03.2012, whereby
an "Explanation" was added;
(ii) Whether the Tribunal, in the decision
rendered on 19.12.2017, has correctly
interpreted the scope of "Explanation"."
(emphasis supplied)
3. The matter has since been decided by the
larger bench of the Tribunal by an order dated
14.06.2024. The larger bench held as follows:
"*****
35. In view of above, it can fairly be
inferred that the appellants are eligible to
exemption from BCD under the said
Notification 25/2005 CE dated 1.3.2005 as
amended."
(emphasis supplied)
4. The appellant would, therefore, be eligible to
claim exemption from Basic Customs Duty under
notification dated 01.03.2005.
5. The impugned order dated 06.06.2019 passed
by the Commissioner of Customs (Appeals) is,
accordingly, set aside and the appeal is allowed
with consequential relief."
(emphasis supplied)
16. The Bills of Entry covered in the present appeal from 05.01.2015
upto 27.02.2015 are part of the aforesaid order dated 09.09.2024 passed
by the Tribunal covering the period from 29.12.2014 to 27.02.2015.
17. The present appeal seeks to challenge the order dated 14.06.2019
passed by the Commissioner (Appeals) upholding the order dated
12.02.2016 passed by the Assistant Commissioner rejecting the refund
application filed by the appellant.
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18. The factual position, as stated above, is summarised in the following
chart. The dates mentioned in shaded background pertain to speaking
order/availability of the Exemption Notification, while the non-shaded
background pertain to the refund application:
Date Particulars
01.05.2005 & Exemption Notification dated 01.05.2005 granted exemption
17.03.2012 from payment of basic customs duty to all digital cameras. It
was amended on 17.03.2012.
2012 The appellant imported digital cameras through Air Cargo
Complex Delhi and availed basic customs duty exemption under
the Exemption Notification.
Post amendment, the benefit was initially disputed but allowed
later for the period 17.3.2012 to 12.2.2014 without any dispute.
November 2013 An investigation was initiated by the Directorate of Revenue
(DRI Intelligence8 regarding the imports of digital cameras at
investigation) concessional rate of duty which resulted into issuance of show
cause notice dated 19.08.2014 proposing to deny benefits of the
exemption which had been claimed at the time of import of the
digital cameras during the period 16.03.2012- 15.02.2014.
The said matter was decided by Supreme Court in Civil Appeal
No. 1832 of 2018 by order dated 09.03.2021. The Supreme
Court set aside the show cause notice on the ground of
jurisdiction. The said order was challenged by the department by
filing a Review Petition. The Supreme Court, by Final Order
dated 07.11.2024, remanded the matter back to the Tribunal for
deciding the issue on merits for the normal period of limitation.
12.03.2014 Due to the DRI investigation, department did not allow the
appellant to claim benefit of exemption on the digital cameras
imported by it from February 2014 onwards.
The appellant, therefore, submitted a letter requesting the
department to provisionally assess the Bills of Entry filed for
importing digital cameras.
14.03.2014 The Deputy Commissioner wrote a letter to the appellant
(Benefit of the stating:
Exemption (i) Digital cameras are not eligible for exemption under the
Notification) Exemption Notification. Therefore, the department has been
re-assessing the Bill of Entry under section 17(4) of the
Customs Act without granting the benefit of the Exemption
Notification.
8. DRI
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(ii) In case, the appellant does not agree with the re-
assessment, they may intimate the same in writing to the
department so that a speaking order under section 17(5) of
Customs Act can be passed.
18.03.2014 As the appellant did not agree with the re-assessment, it
(Request for requested for passing of a speaking order.
speaking order)
15.03.2014 and The appellant started paying duty under protest for future Bills
18.03.2014 of Entry and filed protest letters with the Bills of Entry. The
(Payment of duty appellant also requested for passing speaking order in all the
under protest) letters.
16.04.2014 Various reminder letters were filed by the appellant requesting
30.05.2014 passing of a speaking order for the imports of digital cameras
27.06.2014 wherein duty was paid under protest.
06.02.2015
08.07.2015
(Reminders for
passing speaking
order)
21.07.2015 In spite of repeated reminders when no speaking order was
(Refund passed, and as the time limit for filing refund application was
application filed) near to its expiry, the appellant was constrained to file refund
application before the Assistant Commissioner for 52 Bills of
Entry covering the period 29.12.2014 to 27.02.2015 for an
amount of ₹7,32,77,496/-.
21.08.2015 As no speaking order was passed despite multiple reminders
filed by the appellant, the appellant filed Writ Petition (Civil) No.
8009 of 2015 before the Delhi High Court seeking a direction to
the authorities to pass a speaking order so that an appropriate
action could be taken by the appellant.
15.09.2015 The Assistant Commissioner issued memorandum asking the
(Memorandum-1 appellant to explain why refund claim should not be rejected in
for refund absence of re-assessed Bills of Entry in the light of judgment of
application) the Supreme Court in Priya Blue.
30.09.2015 The appellant responded to the memorandum by letter dated
30.09.2015 stating that the appellant is entitled to benefit of the
Exemption Notification and that re-assessed Bills of Entry are
not required for claiming refund.
08.02.2016 The Writ Petition filed by the appellant was allowed by the Delhi
(Writ order) High Court by order dated 08.02.2016. The Delhi High Court
directed the Deputy Commissioner to pass a speaking order
under section 17(5) of the Customs Act within 15 days.
12.02.2016 The Assistant Commissioner passed an order dated 12.02.2016
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(received on rejecting the refund applications filed by the appellant on the
03.10.2016) ground of absence of re-assessed impugned Bills of Entry. The
(order-in-original Assistant Commissioner relied upon the judgment of the
rejecting refund Supreme Court in Priya Blue.
application) The appellant challenged the order rejecting the refund
applications before the Commissioner (Appeals).
09.03.2016 Despite the direction by the Delhi High Court, no speaking order
31.03.2016 was passed within 15 days from the date of decision. The
04.05.2016 appellant sent repeated reminders to the department requesting
(Reminder letters for passing of speaking order pursuant to the directions of the
for speaking Delhi High Court.
order post writ
order)
12.05.2016 The Assistant Commissioner passed the speaking order on
(Speaking order) 12.05.2016 denying the benefit of exemption to digital cameras
imported by the appellant, including imports made by impugned
Bills of Entry.
The appellant filed an appeal against the speaking order before
the Commissioner (Appeals).
06.06.2019 After a delay of almost 3 years, the Commissioner (Appeals) by
(CC(A) order for an order dated 06.06.2019 upheld the speaking order denying
speaking order) the benefit of the Exemption Notification to the appellant.
14.06.2019 The Commissioner (Appeals) passed an order dated 14.06.2019
(Impugned order upholding the order dated 12.02.2016 that rejected the refund
by CC(A) for application by relying on the decision of the Tribunal dated
refund 19.12.2017 in M/s. Sony India Private Limited vs.
9
application) Commissioner of Customs, New Delhi to hold that benefit of
the Exemption Notification is not available. Further, it was stated
that there is no need to decide the issue regarding requirement
of re-assessed Bills of Entry as the issue is already decided on
merits against the appellant by the Tribunal.
05.09.2019 The appellant filed an appeal against the order dated 06.06.2019
(Appeal against before the Tribunal bearing Customs Appeal No. 52218 of 2019.
OIA for speaking
order)
13.09.2019 The order dated 14.06.2019 has been challenged by the
(Appeal against appellant in the present appeal before the Tribunal.
refund rejection
order)
08.03.2022 The Tribunal, by interim order dated 08.03.2022, dissented with
(Referral order to the findings given by the Tribunal in the earlier case of the
9. 2018 (362) E.L.T. 637 (Tri.-Del.)
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larger Bench for appellant.
speaking order) Accordingly, the issue on merits was referred to a Larger Bench
to decide the following two questions:
(i) Whether the digital cameras imported by the appellant
would be entitled to basic customs duty exemption under
the Exemption Notification, as amended by the Notification
dated 17.03.2012;
(ii) Whether the Tribunal in Sony India decided on
19.12.2017, had correctly interpreted the scope of
'Explanation'?.
14.06.2024 The Larger Bench of the Tribunal by an interim order dated
(Larger Bench 14.06.2024 held that the digital cameras imported by the
order) appellant would be entitled to benefit of the Exemption
Notification.
09.09.2024 The Tribunal, by order dated 09.09.2024, allowed the benefit of
(CESTAT order in the Exemption Notification to the appellant following the Larger
C/52218/2019- Bench order and set aside the order dated 06.06.2019 with
Speaking order) consequential relief.
The Bills of entry covered in the present appeal are part of this
order of the Tribunal wherein the issue on merits has been
decided in favour of the appellant.
January, 2025 The department has challenged the Order dated 09.09.2024 of
the Tribunal in Civil Appeal No. 3541 of 2025 before the
Supreme Court. However, no stay has been granted and notice
has been issued on 24.02.2025.
09.04.2025 Post remand from the Supreme Court by order dated
07.11.2024, the Tribunal heard the issue on merits and relying
upon the order dated 09.09.2024, allowed the benefit of the
Exemption Notification.
19. Shri V. Lakshmikumaran, learned counsel for the appellant assisted
by Ms. Jyoti Pal, Ms. Anjali Gupta and Shri Ashwani Bhatia, made the
following submissions:
(i) The reason given by the Commissioner (Appeals) in the
impugned order dated 14.06.2019 for rejection of refund
claim that the issue stood concluded by a decision dated
19.12.2017 of the Tribunal rendered in the matter of the
appellant no longer subsists in view of the Larger Bench
order dated 14.06.2019 of the Tribunal. Accordingly, the
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impugned order is liable to be set aside and the refund
application dated 21.07.2015 is liable to be allowed for
refund of the differential duty along with interest in terms of
section 27 read with section 27A of the Customs Act;
(ii) The Larger Bench of the Tribunal decided the issue on merits
in favor of the appellant by order dated 14.06.2024 and in
terms of the Larger Bench order of the Tribunal, the Division
Bench of Tribunal passed the Final Order on 09.09.2024.
The impugned Bills of Entry for which refund has been filed
by the appellant are covered under the order dated
09.09.2024 of the Tribunal allowing the benefit of the
Exemption Notification to digital cameras. Thus, the order of
the Tribunal read with impugned Bills of Entry would
tantamount to re-assessment of the impugned Bills of Entry.
Therefore, once re-assessment has been done in favor of the
appellant by order dated 09.09.2024 of the Tribunal, the
issue raised in the order dated 12.02.2016 passed by the
Assistant Commissioner for rejecting the refund application
also does not survive;
(iii) The judgment of the Supreme Court in ITC Ltd. vs.
Commissioner of Central Excise, Kolkata10 and other
judgments relied upon in the order dated 12.02.2016 passed
by the Assistant Commissioner are not applicable to the
present case. In any case, the order passed by the Assistant
Commissioner stood merged in the order passed by the
Commissioner (Appeals) and only one reason has been
given, which reason can no longer stand in view of the
Larger Bench decision of the Tribunal;
10. 2019 (368) E.L.T. 216 (SC)
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(iv) The refund application filed by the appellant on 21.07.2015
was maintainable on the date of filing as there was no legal
bar in moving the application;
(v) The department cannot deny refund of differential duty with
interest to the appellant by taking advantage of its own
delay in passing the speaking order;
(vi) The appellant is entitled to interest from the expiry of three
months from the date of filing of the refund application in
terms of section 27A of the Customs Act;
(vii) The appellant is entitled to refund as a consequential relief
to the order dated 09.09.2024 of the Tribunal. The present
refund claim filed by the appellant is in respect of the very
same Bills of Entry which were covered and decided in the
speaking order dated 12.05.2016, by which the claim of the
appellant for availing benefit of the Exemption Notification
was initially denied. However, the Larger Bench of the
Tribunal decided the reference in favour of the appellant and
the Division Bench of the Tribunal passed in the order dated
09.09.2024 in terms of the reference answered by the
Larger Bench. A natural corollary of the above order would
be to grant refund of the duty paid by the appellant at the
time of filing of disputed Bills of Entry, along with necessary
interest. This has to be regarded as consequential relief;
(viii) It is a well-settled legal position that "an appeal is in
continuation of assessment proceedings" by virtue of which
in case of passing of an assessment order (in this case, the
impugned Bills of Entry read with the speaking order), the
assessee has the statutory right to challenge it before higher
authorities, namely the Commissioner (Appeals) and
subsequently the Tribunal. The appellate process is not a
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fresh or independent proceeding. It is treated as an
extension of the original assessment. This principle ensures
that the final outcome of the appellate process is deemed to
have effect from the date of the original assessment and not
from the date of the appellate order. It means when the
Tribunal held that the appellant was entitled for the
exemption, the speaking order and the subsequent order of
the Commissioner (Appeals) stood modified and it is this
order which survives. Therefore, as a consequential relief,
and appeal being continuation of assessment proceedings,
the order takes effect from the day of assessment of
impugned Bills of Entry. It cannot be that when the Tribunal
passed the order, the appellant became entitled to benefit of
the Exemption Notification from that date i.e. 09.09.2024;
(ix) The order passed by the Assistant Commissioner rejecting
refund application has been modified by order dated
09.09.2024 of the Tribunal;
(x) Section 27(1B) does not restrict the assessee from filing
refund claim prior to the date of favourable order but only
extends the time period for doing so in case of pending
litigation. Section 27(1B) only fixes the final date till when
the refund claim can be filed. However, the initial date has
not been fixed by the said provision;
(xi) The judgment of the Supreme Court in ITC does not prevent
or restrict any assessee from filing refund application prior
to re-assessment of Bills of Entry but only allows grant of
refund subject to modification of original assessment; and
(xii) By virtue of the doctrine of merger and the doctrine of
relation back, the order dated 09.09.2024 passed by the
Tribunal relates back to the date of passing of speaking
22
C/52552/2019
order. Therefore, refund application filed by the appellant on
21.07.2015 was valid on the date of filing. The appellant is
entitled to interest from the expiry of three months from the
date of refund application in terms of Section 27A of
Customs Act.
20. Shri P.R.V. Ramanan, learned special counsel assisted by Shri
Rakesh Kumar, learned authorized representative appearing for the
department made the following submissions:
(i) The ratio laid down by the Supreme Court in ITC and Priya
Blue and Collector of Central Excise, Kanpur vs. Flock
(India) Pvt. Ltd.11 is applicable in the present facts and
circumstances. In fact, the ratio laid down in Priya Blue,
which the Assistant Commissioner has relied to reject the
refund application, will squarely cover the present matter;
(ii) The statue provides for filing for refund application under
section 27 of the Customs Act but it does not mean the
same is entertainable/maintainable before the assessment
order is challenged and modified subsequently by the quasi-
judicial authority (the proper officer). Thus, the refund
application filed at that time did not carry any authority (no
cause of action) in the absence of any modified order passed
after the assessment order/assessed Bills of Entry. Thus, the
refund application was not maintainable at that time as per
ration laid down by the Supreme Court in ITC. The cause of
action had not arisen to the appellant on 21.07.2015 when
the refund application was filed and, therefore, the refund
application was rightly rejected. In support of this
contention, learned special counsel placed reliance upon the
11. 2000 (120) E.L.T. 285 (S.C.)
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judgment of the Supreme Court in Dena Snuff (P) Ltd. vs.
Commissioner of Central Excise, Chandigarh12;
(iii) The Tribunal, in its order dated 09.09.2024, relying on the
Larger Bench decision of the Tribunal passed an order in
favour of the appellant and they had the authority as per law
to get the refund subsequent to the date of the order of the
Tribunal on 09.09.2024 and not from the date of the refund
application filed on 21.07.2015;
(iv) The department cannot be compelled to grant interest from
the date when the application was filed as it would
tantamount to granting refund without authority of law;
(v) There was no delay on the part of the department in passing
speaking order. Even otherwise, once the Bills of Entry had
been assessed, the appellant could challenge the
assessments without waiting for a speaking order as per law
laid down by the Supreme Court in ITC which holds that
assessment includes self-assessment and re-assessment and
even self-assessment order is an appealable order;
(vi) To say that the speaking order dated 12.05.2016 and the
order of the Commissioner (Appeals) have merged in the
order passed by the Tribunal on merit on 09.09.2024 is a
misnomer because while one order dated 12.02.2016 has
arisen out of the executive function of the Assistant
Commissioner (lacking any quasi-judicial authority), the
other order was passed on 12.05.2016 by the quasi-judicial
authority as per order of the Delhi High Court. Both the
orders have separate jurisdictions and cannot be collated by
applying the doctrine of merger as it would destroy the
12. 2003 (157) E.L.T. 500 (SC)
24
C/52552/2019
distinctiveness of the provisions of section 27 and section 17
of the Customs Act;
(vii) The doctrine of relation back cannot apply in the present
facts and circumstances, more so when the present dispute
is not related to grant of interest or refund but it relates to
the question of maintainability/entertainability of the refund
application filed by the appellant without getting the
assessment order passed by the quasi-judicial authority
modified in appeal; and
(viii) Even if the duty was paid under protest, the limitation of one
year shall not apply. That means that the application of
refund could be filed even beyond one year of the date of
deposit. But once the assessment order is challenged, the
said protest is vacated and the refund, if any, would be
subject to the outcome of that challenge to the assessment
order. In other words, the provisions of section 27(1B)(b)
now takes guard of the proceedings to be adopted by the
authority while granting refund. Thus, the refund can be
available to the appellant only after the decision of the
Tribunal on 09.09.2024 and not before that. Any refund
allowed without applying the provisions of the section
27(1B)(b) of the Customs Act will be bad in law.
21. The submissions advanced by the learned counsel for the appellant
and the learned special counsel appearing for the department have been
considered.
22. The appellant claims that it was entitled to claim exemption from
payment of basic customs duty on the import of digital cameras in terms
of the Exemption Notification, but as this was denied to the appellant, the
appellant requested the department to provisionally assess the Bills of
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Entry. The Deputy Commissioner, however, by a letter dated 14.03.2014
informed the appellant that the digital cameras imported by the appellant
were not eligible for exemption of customs duty and if the appellant did
not agree it could intimate the department so that a speaking order could
be passed. In response to this letter, the appellant requested the
department to pass a speaking order but at the same time it paid basic
customs duty under protest for future Bills of Entry. As no speaking order
was passed, the appellant filed refund application on 21.07.2015 claiming
refund of the duty amount paid under protest from 29.12.2014 to
27.02.2015. This refund application was rejected by the Assistant
Commissioner by order dated 12.02.2016 as the Bills of Entry had not
been re-assessed. This order was challenged by the appellant before the
Commissioner (Appeals) and the appeal was dismissed by an order dated
14.06.2019. The Commissioner (Appeals) relied upon the order dated
19.12.2017 passed by the Tribunal in the matter of the appellant and two
other appellants wherein the benefit of exemption was denied. The
Commissioner (Appeals), therefore, held that the appellant was not
entitled to exemption from basic customs duty.
23. It also needs to be noted that a speaking order was passed by the
Assistant Commissioner after two years on 12.05.2016 and the benefit of
the exemption notification was denied to the appellant. This order was also
assailed by the appellant before the Commissioner (Appeals), who by
order dated 06.06.2019, rejected the appeal after placing reliance upon
the decision of the Tribunal rendered on 19.12.2017 in the matter of the
appellant and two others wherein the claim of the appellant for exemption
from payment of basic customs duty was not accepted.
26
C/52552/2019
24. This order of the Commissioner (Appeals) was assailed by the
appellant before this Tribunal and by an order dated 08.03.2022, a
Division Bench of the Tribunal did not agree with the earlier decision
rendered by the Tribunal on 19.12.2017 and referred the matter to a
Larger Bench of the Tribunal to decide whether the digital cameras
imported by the appellant would be entitled to exemption from basic
customs duty under the Exemption Notification.
25. A Larger Bench of the Tribunal answered the reference by an order
dated 14.06.2024 and held that the digital cameras imported by the
appellant would be entitled to exemption from basic customs duty in terms
of the Exemption Notification. In view of the order passed by the Larger
Bench, the Division Bench of the Tribunal allowed Customs Appeal No.
52218 of 2019 filed by the appellant on 09.09.2024. The impugned order
was set aside with consequential relief to the appellant.
26. The Bills of Entry covered under the present appeal from 05.01.2015
upto 27.02.2015 are part of the aforesaid order dated 09.09.2024 passed
by the Tribunal covering the period from 29.12.2014 to 27.02.2015.
27. As noticed above, the Commissioner (Appeals) had decided the
appeal filed by the appellant against the rejection of the refund application
for the reason that the Tribunal, by an order dated 19.12.2017, in the
matter of the appellant, had denied exemption to the appellant from
payment of basic customs duty in terms of the Exemption Notification and,
therefore, the question of refund did not arise. This order dated
19.12.2017 no longer lays down good law as a Larger Bench of the
Tribunal, by an order dated 14.06.2024, held that digital cameras
imported by the appellant would be eligible for exemption from basic
customs duty under the Exemption Notification.
27
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28. The contention of the learned counsel for the appellant is that once
the Tribunal by order dated 09.09.2024 allowed the benefit of the
Exemption Notification to digital cameras, the order of the Tribunal read
with the impugned Bills of Entry would tantamount to re-assessment of
the Bills of Entry and, therefore, the reason assigned by the Assistant
Commissioner in the order dated 12.02.2016 for rejecting the refund
application also does not survive. Learned counsel also submitted that
once the Larger Bench of the Tribunal held that the appellant is entitled to
exemption from payment of basic customs duty and the Division Bench
allowed the appeal filed by the appellant against the order rejecting the
refund application with consequential relief, the appellant would be
entitled to refund.
29. Learned counsel for the appellant also submitted that there was no
bar in moving the refund application on 21.07.2015 and the appellant
would be entitled to interest from the expiry of three months from the
date of filing the refund application in terms of section 27A of the Customs
Act. Learned counsel submitted that an appeal is a continuation of the
assessment proceedings and once the final order is passed by the
Appellate Authority, it shall be deemed to have effect from the date of
original assessment and not from the date of the appellate order.
According to the learned counsel for the appellant, the judgment of the
Supreme Court in ITC does not prevent or restrict any assessee from filing
refund application prior to re-assessment of the Bills of Entry but only
allows grant of refund subject to modification of the original assessment.
30. Learned special counsel appearing for the department, however,
submitted that the appellant could not have filed the refund application on
21.07.2015 since no cause of action had arisen on that date and in this
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connection, learned special counsel placed reliance upon the judgment of
the Supreme Court in Dena Snuff to contend that the cause of action to
the appellant to file the refund application could have arisen only after the
dispute was finally settled by the Tribunal.
31. It would, therefore, be necessary to first examine this contention of
the learned special counsel for the department.
32. In Dena Snuff, the appellant therein had classified the product
under sub-heading 2404 60 of the Central Excise Tariff and had continued
to pay duty till 27.09.1990 when the inspector declined to clear the
product unless duty at higher rate under tariff sub-heading 2404 50 was
paid. The appellant made payments under protest. However, in a matter
filed by another trader, the Tribunal held that the said product would be
classifiable under sub-heading 2404 60. It is on the basis of this decision
of the Tribunal that the appellant filed a refund application claiming refund
of duty which it had paid under protest. The Tribunal rejected the
application on the preliminary ground that the application for refund was
not maintainable. However, the Supreme Court on 28.08.2003 in the
matter of the appellant own case, decided that the appellant was right all
along and that the duty was leviable under tariff sub-heading 2404 60. It
is in this context that the Supreme Court in Dena Snuff observed that the
cause of action to the appellant would arise only after the dispute
regarding classification list had been settled by the Supreme Court on
28.08.2003. The observation of the Supreme Court in Dena Snuff are:
"5. As far as the first submission is concerned, we are
of the view that the Tribunal's appreciation of the
relevant paragraph in Mafatlal Industries (supra) was
correct. The "cause of action" of the appellant
would arise only after the final dispute regarding
the classification list had been settled by this
Court. That was done as recently as on 28-8-
29
C/52552/2019
2003. The application for refund by the appellant
was therefore premature. We have noted the
proviso to sub-section (1) of Section 11(B) which says
that the period of limitation of one year prescribed
under sub-section (1) will not apply in case duties are
paid under protest. The question then is from which
date will the period of limitation start to run? It
appears on the basis of the paragraph of Mafatlal
Industries decision which has been relied upon by
the Tribunal it would have to be from the final
decision in the assessee's own case."
(emphasis supplied)
33. The facts of the present case are almost similar to the facts of the
case before the Supreme Court in Dena Snuff. The issue is as to whether
the appellant could have filed refund claim even before the issue as
whether the appellant could claim exemption from payment of basic
customs duty was settled by the Tribunal on 14.06.2024 when the Larger
Bench of the Tribunal answered the reference. In terms of the judgment of
the Supreme Court in Dena Snuff, the cause of action had not arisen to
the appellant when the refund application was filed as the appellant had
filed the refund application on 21.07.2015. The refund application was,
therefore, liable to be rejected for this reason.
35. Learned counsel for the appellant, however, submitted that if this
view is accepted, then the department cannot also issue protective
demand notices under section 28 of the Customs Act. Learned counsel,
therefore, submitted that if protective notices are held to be valid, then
the present refund application filed by the appellant should also be held to
be a valid application.
36. Section 28 of the Customs Act deals with recovery of duties not
levied or not paid or short-levied or short-paid or erroneously refunded. To
issue a show cause notice under section 28 to recover duty not levied, not
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paid, short levied, short paid or erroneously refunded, the cause of action
must have two elements- (a) the fact that duty was paid or refunded and
(b) in the opinion of the proper officer issuing the notice more duty should
have been paid or levied or that duty has been refunded erroneously. It is
usually the practice of the department to keep issuing 'show cause notices
for subsequent periods or subsequent clearances' under section 28 of the
Customs Act contrary to the decisions holding the field at that time and,
therefore, without a cause of action in the hope of succeeding in appeal.
These, so called 'protective demands', i.e., show cause notices issued
without cause of action will be equally covered by the judgment of the
Supreme Court in Dena Snuff and even if the cause of action arises
subsequently, the show cause notice cannot be issued at a time when
there was no cause of action.
37. In view of the aforesaid discussion, the refund application filed by
the appellant was rightly rejected by the Commissioner (Appeals). This
appeal would, therefore, have to be dismissed and is dismissed.
(Order pronounced on 06.04.2026)
(JUSTICE DILIP GUPTA)
PRESIDENT
(P.V. SUBBA RAO)
MEMBER (TECHNICAL)
Shreya
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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. I
CUSTOMS APPEAL NO. 52552 OF 2019
(Arising out of Order-in-Appeal No. CC (A)/CUS/D-I/Import/NCH/255/2019-20 dated
14.06.2019 passed by the Commissioner of Customs (Appeals), New Customs House,
Near I.G.I. Airport, New Delhi)
Nikon India Private Ltd. .....Appellant
Plot No. 71, Sector-32, Institutional Area,
Gurgaon - 122001, Haryana
VERSUS
Commissioner of Customs (Import), .....Respondent
New Customs House, Near I.G.I. Airport,
New Delhi - 110037
APPEARANCE:
Shri V. Lakshmikumaran, Ms. Anjali Gupta and Shri Ashwani Bhatia, Advocates
for Appellant
Shri P.R.V. Ramanan, Special Counsel and Shri Rakesh Kumar, Authorized
Representative appearing for the Department
CORAM:
HON'BLE MS. BINU TAMTA, MEMBER (JUDICIAL)
HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)
Date of Hearing: 18.11.2025
Date of Decision: 06.04.2026
ORDER
Order pronounced.
(BINU TAMTA) MEMBER (JUDICIAL) (P.V. SUBBA RAO) MEMBER (TECHNICAL) Shreya